The Supreme Court, on Tuesday, fixed August 20 to hear an appeal the Peoples Democratic Party, PDP, and its candidate, Atiku Abubakar, lodged to quash a proceeding the Presidential Election Petition Tribunal held on June 11.
A five-man panel of Justices of the apex court led by Justice Mary Odili, adjourned the appeal marked SC/379/2019, to allow the Independent National Electoral Commission, INEC, President Muhammadu Buhari, and the All Progressives Congress, APC, to react to request by the appellants to be allowed to file supplementary record from the tribunal.
Counsel to the appellants, Chief Paul Erokoro, SAN, had after the case was called up for hearing, told the Supreme Court panel that his clients filed an application for permission to properly bring before the court, supplementary record that was transmitted out of time from the tribunal.
INEC’s lawyer, Yunus Usman, SAN, counsel to President Buhari, Chief Wole Olanipekun, SAN, and that of the APC, Chief Lateef Fagbemi, SAN, said they were just served with copies of the application and requested for time to file their responses.
Consequently, Justice Odili adjourned the matter, alongside all pending applications with respect to proceedings of the tribunal.
The appellants are praying the apex court to review the proceeding of the tribunal that pertained to an application the APC filed to strike out certain paragraphs of their petition, as well as their list of witnesses and evidence.
The Justice Mohammed Garba-led five-member tribunal had on July 3, declined to set-aside the proceeding which Atiku and PDP, who are challenging the declaration of President Buhari as winner of the February 23 presidential election, insisted occasioned grave miscarriage of justice against them.
It will be recalled that the tribunal had on June 11, struck out a motion the APC filed on May 14 for paragraphs of the petition to be struck out, after it was withdrawn by its lawyer, Fagbemi, SAN.
However, shortly after the motion was struck out, Fagbemi, SAN, drew attention of the tribunal to a similar application the party also filed on May 15.
He urged the tribunal to grant the application, contending that the petitioners failed to file any counter-affidavit to oppose it.
Reacting, counsel to the petitioners, Dr. Uzoukwu, SAN, said he had actually filed a counter-affidavit in opposition to the first motion that was orally withdrawn by the APC.
Uzoukwu argued that since the APC filed two similar motions on the same subject matter, he rather filed a preliminary objection for the tribunal to dismiss them for constituting an abuse of court process, instead of filing a second counter-affidavit.
In an application they brought after the tribunal reserved ruling on APC’s second motion, the petitioners, challenged the entire proceeding, insisting that it was wrong to allow the 3rd Respondent to withdraw a motion it filed in abuse of the judicial process.
They contended that the tribunal ought to have heard their preliminary objection and dismiss the two motions by the APC.
Alleging that they would be denied fair hearing, the petitioners prayed the tribunal to allow them to react to APC’s second motion that they did not file counter-affidavit to.
PDP and Atiku also prayed the tribunal for an order extending the time within which they could file a counter affidavit to APC’s motion.
All the Respondents however challenged the application which they maintained was incompetent.
In a unanimous decision, the tribunal agreed with the respondents and dismissed the application as lacking in merit, stressing that the petitioners made a choice not to file counter-affidavit to oppose APC’s motion that was duly served on them on May 16.
The tribunal noted that the time within which the petitioners could file their counter-affidavit had elapsed.
“The choice was neither a mistake, error or inadvatency of counsel. In law, a choice or election freely made by a party cannot be recalled”, Justice Garba held.
He held that the petitioners neither adduced a cogent or verifiable evidence, nor placed material facts that would warrant the tribunal to exercise its discretion in their favour.
The tribunal said the petitioners failed to meet any of the statutory requirement that would warrant it to review its proceedings.
“This motion is lacking in merit, it is refused and is hereby dismissed”, the tribunal held.
Nevertheless, relying on section 285(8) of the 1999 Constitution, as amended, the tribunal said it would deliver seven pending rulings that touched on both the competence of the petition and its jurisdiction to entertain it, alongside the final judgement.
